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Mom Gets Custody Despite Her Unclean Hands

A Federal Circuit Court of Appeals has ruled that unclean-hands doctrine does not apply in Hague Convention cases. In the case of Karpenko v. Leendertz, Mother and Father’s child was born in Pennsylvania in 2001. In September of 2002, after Mother and Father separated, Pennsylvania Trial Court issued an order (per their custody stipulation) that gave Mother primary physical custody of Child, provided that Mother and Child would live in Mother’s home country, Ukraine, and gave Father regular visitation rights to be exercised in Ukraine, the Netherlands (where Father has family), or the United States.

Mother and Child lived in Ukraine until Child was two, when they moved to the Netherlands at Father’s request. When Child was four, she began attending Dutch public school, spoke Dutch as her primary language, and often socialized with Mother’s Dutch relatives. Father, whose job as an airline pilot enabled him to travel to Netherlands, later found that Mother was refusing to allow him full visitation with Child.

In 2007, Mother and Child moved to another city without giving Father their new address or phone number. In 2008, Father filed a petition for sole custody in Pennsylvania Trial Court, while Mother filed one in Dutch District Court for Arnhem. That Court stayed Mother’s petition, pending action by Pennsylvania Trial Court.

On May 20, 2009, Pennsylvania Trial Court granted Father sole custody of Child, sole authority to apply for passport for Child (without Mother’s knowledge or consent), and authority to take custody of Child in U.S. or another country. That Court also granted visitation rights to Mother and adjudged her in contempt for willfully violating its prior orders.

Armed with that order, Father went to Netherlands, but instead of domesticating it in Dutch Trial Court (as required by Dutch law), he found Child outside her school, put her in a car, and drove her to Germany. From there, Father and Child flew to Dubai and then to U.S.

On May 29, 2009, Dutch Trial Court issued order, finding that Father unlawfully removed Child from the Netherlands without Mother’s permission and directing Father to return Child to Mother’s custody immediately. Father ignored that order and continued to live with his new wife and Child in Pennsylvania.

On July 20, 2009, Mother filed a petition under Hague Convention [codified as International Child Abduction Remedies Act (ICARA) at 42 U.S.C. 11601 et seq.], seeking Child’s return to the Netherlands from Father’s wrongful removal. U.S. District Court for Eastern District of Pennsylvania granted Mother’s petition, but stayed enforcement of its orders pending Father’s appeal to the Third Circuit Court of Appeals.

Acting on that appeal, the Third Circuit Court of Appeals affirmed the District Court’s rulings. The Court of Appeals has ruled that Father wrongfully removed Child from the Netherlands when he employed "a snatch and run" of Child instead of registering his Pennsylvania custody order and seeking enforcement. Majority further holds that the unclean-hands doctrine does not apply in Hague Convention cases; thus, Mother’s behavior is not relevant and does not excuse Father’s wrongful taking. In dissent, Judge Aldisert would have found guidance in cases approving application of other equitable doctrines, such as waiver and fugitive disentitlement doctrine, in Hague Convention cases and sees no reason why equitable doctrine of unclean hands should not also apply. Judge Aldisert would have applied that doctrine and reversed District Court’s grant of Mother’s petition, describing it as "her latest effort to make American courts the instrumentalities of her inequitable conduct."